A New York federal judge, Edgardo Ramos, sided with the U.S. Department of Labor (DOL) in a lawsuit by private equity firm, Aleutian Capital Partners, arising out of an investigation into alleged violations of the H-1B visa program, the company liable for nearly $23,000 in back wages to two employees stating the DOL’s Administrative Review Board (ARB) properly ruled. SeeAleutian Capital Partners v. Perez (S. D. NY 2017).

Judge Ramos rejected arguments by Aleutian that it was exempt from meeting the requirement for financial analyst and H-1B participant Shakir Gangjee because the company exceeded two annual wage requirements of $60,000 through supplementary bonuses, which were “nondiscretionary payments” equal to 3 percent of Aleutian’s revenue each month. The judge found the ARB determined Aleutian did not provide documentation showing its commitment to making the bonus payments to Gangjee.

Furthermore, Judge Ramos agreed with the ARB that the bonus structure was insufficient because Gangjee’s wages were contingent on the revenues of Aleutian.

“The ARB’s interpretation is supported by the fact that Sec. 655.731(c)(4) requires employers seeking to make nondiscretionary payments to show ‘unequivocally’ that the required wage obligation was ‘met for prior pay periods’ and ‘will be met for each current or future pay period,” Judge Ramos wrote. “It is reasonable to conclude that such showing can be made only if the nondiscretionary payments are guaranteed and not contingent. Accordingly, the Court defers to the ARB’s interpretation.”

Godwin’s Nursery and Trees paid nearly over $117,000 in back-pay and $29,500 in penalties after the U.S. Department of Labor determined the company passed over qualified U.S. citizen workers from Puerto Rico in favor of hiring foreign workers under the H-2A visa program.

The Department of Labor determined that the nursery violated Section 218 of the Immigration and Nationality Act by denying five qualified workers from Puerto Rico the chance to work; instead, hiring four Mexican nationals through the H-2A visa program.

Additionally, Department of Labor determined that Godwin failed to post information about the rights of agricultural workers, as required by law, and he failed to provide housing for the workers that adhered to housing health and safety standards.

Remember if an employer is going to utilize the H-2A program or other non-immigrant visa programs, such as H-2A, one cannot discriminate against U.S. citizens.

U.S. Department of Labor Administrative Law Judge Larry S. Merck approved a settlement between consulting firm, Indus Group Inc., and the administrator of the DOL’s Wage and Hour Division, under which Indus will pay $214,785 in back wages to three H-1B computer programmer workers. Of the three employees, one is being paid $106,860 and the others - $57,760 and $50,160. The company has also agreed to pay $9,120 in penalties.

According to the consent findings, the administrator found that in addition to owing back wages to the H-1B employees, the company did not cooperate in the investigation. However, Indus has now agreed to pay to pay the back wages as a “good faith resolution” of the dispute, according to the settlement.

ME Global hired Petar Peric on a three-year H-1B Visa in 2008. After only two months, ME Global fired Peric for unsafe conduct. Although the company notified Peric of his termination, it failed to provide notification to the USCIS of his termination.

Under immigration laws, when an employer terminates an H-1B Visa holder, it must inform the employee, notify the USCIS, and offer to pay transportation costs for the employee to return to his home country.

In 2010, Peric filed a complaint with DOL alleging he was owed back wages because of ME Global’s failure to notify the USCIS. Essentially, Peric argued that he was “benched” – placed in non-productive status.

ME Global argued the complaint was beyond the 12 month statute of limitations; thus, it should be dismissed. The ALJ rejected that argument and found it was a continuing violation and was timely filed as long as it was filed within one year of when Peric left the United States. Since he filed the complaint in 2010 before leaving the U.S. in June 2011, it was not time-barred.

Thus, the ALJ ruled ME Global owed Peric back wages from November 2008, when he was fired, until June 2011, when he left the United States.

As you see, the employer’s failure to properly notify the USCIS of an employee’s discharge was costly.

An Administration Law Judge of the Department of Labor has found another instance of an H-1B violation by the petitioning employer. In this case, the ALJ ordered Fischer Health & Rehab Center LLC, a company based in New Jersey, to pay Virgilio Ruiz Jr., a Filipino national, $60,000 in back wages for violations of the H-1B visa program. This order was based upon a consent decree with Fischer Health & Rehab Center.

The H-1B validity period was December 6, 2010 until October 1, 2013. The back wages will be paid out as follows: $25,000 upon execution of the agreement followed by five monthly payments of $7,000 each.

As a reader of my immigration compliance blog, you may have observed an increase in H-1B violation and/or fraud cases. There is no clear answer why but one can speculate employers believe H-1B employees will just go along with the employer’s scheme and not file a complaint. These cases demonstrate this assumption is incorrect.